Synopsis

Case Information

THE STATE OF NEW YORK The Court sua sponte amends the caption to read The State of New York as the only Defendant.

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

106803

Motion number(s):

M-67644

Cross-motion
number(s):

Judge:

JAMES J. LACK

Claimant's
attorney:

Samuel M. Levine, Pro Se

Defendant's
attorney:

Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General

Third-party defendant's
attorney:

Signature date:

March 29, 2004

City:

Hauppauge

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

This is a claim by Samuel Levine (hereinafter "claimant") for damages as a
result of his allegedly being falsely arrested, imprisoned, assaulted and found
in contempt. The causes of action arose at the Nassau County Family Court.
Claimant moves this Court to recuse itself from hearing this action and to have
another Court of Claims judge appointed to this matter. Claimant also asks this
Court to stay its proceedings pending the outcome of a concomitant action in the
United States District Court.[1]

The underlying claim arose on July 24 and 25, 2002. At that time, claimant, an
attorney, was representing a client in the Nassau County Family Court. Briefly,
claimant alleges that he and his client were forcibly removed from Judge Richard
Lawrence's courtroom, that claimant was wrongfully arrested, assaulted by court
officers and found guilty of contempt by Judge Lawrence.

Claimant asks this Court to recuse itself on two grounds: first, that Judge
Lawrence and I were active members of the Republican Party; and second, that
Judge Lawrence and I each worked in the New York State Senate during the same
period of time.

The Rules of the Chief Administrator delineate particular circumstances in
which a judge shall recuse himself. Those circumstances are contained in
§100.3(E) and read as follows:

(E) Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned, including but not limited
to instances where:

(a) (i) the judge has a personal bias or prejudice concerning a party; or (ii)
the judge has personal knowledge of disputed evidentiary facts concerning the
proceeding;

(b) the judge knows that (i) the judge served as a lawyer in the matter in
controversy; or (ii) a lawyer with whom the judge previously practiced law
served during such association as a lawyer concerning the matter; or (iii) the
judge has been a material witness concerning it;

(c) the judge knows that he or she, individually or as a fiduciary, or the
judge's spouse or minor child residing in the judge's household has an economic
interest in the subject matter in controversy or in a party to the proceeding or
has any other interest that could be substantially affected by the
proceeding;

(d) the judge knows that the judge or the judge's spouse, or a person known by
the judge to be within the sixth degree of relationship to either of them, or
the spouse of such a person:

(i) is a party to the proceeding;

(ii) is an officer, director or trustee of a party;

(iii) has an interest that could be substantially affected by the
proceeding;

(iv) is likely to be a material witness in the proceeding;

(e) the judge knows that the judge or the judge's spouse, or a person known by
the judge to be within the fourth degree of relationship to either of them, or
the spouse of such a person, is acting as a lawyer in the proceeding.

(f) Notwithstanding the provisions of subparagraphs (c) and (d) of this section,
if a judge would be disqualified because of the appearance or discovery, after
the matter was assigned to the judge, that the judge individually or as a
fiduciary, the judge's spouse, or a minor child residing in his or her household
has an economic interest in a party to the proceeding, disqualification is not
required if the judge, spouse or minor child, as the case may be, divests
himself or herself of the interest that provides the grounds for the
disqualification.

The instant situation does not fall into any of the specific situations listed
in the Rules of the Chief Administrator. The request for recusal then falls
within the discretion of this Court. Claimant indicates in his affirmation that
Judge Lawrence and I have known each other for several years due to the fact
that we each worked in the NYS Senate. During a conference, claimant indicated
that Judge Lawrence was counsel to a state senator. Prior to my being appointed
to this Court in January 2003, I was a state senator for the second senate
district for twenty-four years. However, I have no recollection of Judge
Lawrence, who he worked for, when he worked in the Senate, or if we even ever
met. After all, the New York State Senate employs over 1,400 people.

In addition, claimant indicates that he and I were political adversaries during
his campaigns for Supreme Court in 1992, 1997, and 1998, and during his
campaigns for District Court in 1993, 1994, 1995 and 1996. This is not
accurate. I have never run for judicial office, and with respect to claimant's
campaigns for District Court, I have never run in Nassau County for any office.
The position I hold as a Court of Claims Judge is as an appointee of the
governor of the State of New York (Court of Claims Act §2). Further, while
I am a registered Republican, I have never held a position of any kind - -
including committeeman - - in the Republican Party. Claimant's request for
recusal is denied.

The other relief sought by claimant is for this Court to stay its proceedings,
pending the outcome of claimant's action in federal court. Claimant avers that
he intends to move the Federal Court to consolidate the New York State Court of
Claims action with the federal action, a procedure with which I am unfamiliar.
Pursuant to Article VI, §9 of the New York State constitution, the Court of
Claims was created and granted exclusive jurisdiction of claims against the
State of New York for money damages.

The situation presented in the instant matter is not unique. Due to the
limited jurisdiction of the Court of Claims and the inability to sue the State
of New York in any other forum, claimants are often faced with the same
predicament claimant now faces. Short of a constitutional amendment, there is
no solution to claimant's problem other than proceeding with both actions in
separate courts. Claimant chose to bring this action as well as the federal
action. He presents no basis to delay this case any further. Claimant's motion
to stay discovery in the instant proceeding is, therefore, denied. In sum,
claimant's motion for the Court to recuse itself and to stay the proceedings
pending the outcome of the federal court action is denied.

March 29, 2004Hauppauge,
New York

HON. JAMES J. LACKJudge of the Court of Claims

[1]The following papers have been read and
considered on claimant's motion to recuse and stay proceedings: Notice of
Motion dated November 5, 2003 and filed November 12, 2003; Affirmation of Samuel
M. Levine, Esq., in Support of Motion with Exhibits 1-8 dated November 5, 2003
and filed November 12, 2003; Reply Affirmation of John M. Shields, Esq. dated
November 13, 2003 and filed November 20, 2003; Reply Affirmation of Samuel M.
Levine, Esq., in Support of Claimant's Motion, dated November 24, 2003 and filed
December 1, 2003.